Skip to main content

DOMA Creates Problems for Second Marriages

Often poorly written legislation has unintended consequences.  DOMA (the so-called Defense of Marriage Act) allows states to ignore marriages from other states or countries, when those marriages are between two people of the same gender.  We've previously written about the problems that this can cause in same-sex divorces: Same-Sex Marriage is Getting Easier, But Same-Sex Divorce is still Tricky.  But the problems don't just end there.

Since some states won't allow you get divorced from a same-sex marriage, residents of those states have been told that they are essentially not married.  Does this mean that they can re-marry in that state?  The answer is yes, but not without potential consequences.

To illustrate the risks, consider the following hypothetical scenario:

Jane Smith and Janet Doe have been living together for years in Texas.  They have friends in Massachusetts and when they heard about the ballot initiative in Maine to legalize same-sex marriage they decided to move to New England and be a part of that political movement.  They lived in Massachusetts for a year and got married in Massachusetts while traveling to Maine often to be involved in protests.  After the Maine initiative passed, Jane wanted to continue protesting in other states, but Janet wanted to settled down somewhere and start a family.  Realizing they had different goals Jane and Janet separated.  Jane moved back to Texas.  After a particularly bad winter storm, Janet decided Massachusetts wasn't for her and she moved to Florida.

While living in Texas Jane fell in love with John Lee, and they are now engaged.  Jane has been told that Texas doesn't recognize her same-sex Massachusetts marriage and she is free to marry John in Texas.  Jane and John get married without Jane dissolving her first marriage.

What happens if DOMA is repealed?

If DOMA is repealed then states like Texas are going to be required to recognize out-of-state marriages even if they are same-sex marriages.  At that point Jane will have two marriages recognized by Texas law.  This could possibly make her second marriage void.  It also might create a violation of the bigamy laws in Texas, because Jane will be married to two people and still living with her second spouse.

What happens if Jane and John move to a state that recognizes same-sex marriages, like Maine?

A state like Maine which allows same-sex marriage would recognize the original marriage. At that point Jane will have two marriages recognized by her state of residence.  This could possibly make her second marriage void.  It also might create a violation of the bigamy laws in Maine, because Jane will be married to two people and still living with her second spouse.

How can Jane avoid these problems?

Since Jane and Janet last lived together in Massachusetts, they can file for divorce in Massachusetts and dissolve the first marriage.  Once complete this will allow Jane to remarry without having to worry about the consequences.

However, if we change one fact in this hypothetical another problem arises.  If Jane and Janet didn't move to Massachusetts but just traveled there to get married while remaining residents of Texas, then they are are married in any state that recognizes same-sex marriage. However, they cannot get divorced in Massachusetts because neither is a resident and they never lived together in Massachusetts.  This means that Jane can't give divorced without moving to a state that recognizes same-sex marriages long enough to meet the residency requirements.

In this scenario, Jane can't get divorced and she shouldn't get re-married without getting divorced first.  Was it the intention of DOMA's drafters to prevent marriages between opposite-sex couples in their states?  Probably not, however, often poorly written legislation has unintended consequences.



Comments

Popular posts from this blog

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days.

This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened.

In addition to offering a grace period to change your mind, the Nisi period has three other legal effects:

1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, because…

Does a Criminal Record affect Child Custody?

If one of the parents in a custody case has a criminal record, the types of crimes on their record could have an effect on their chances of obtaining custody. In custody cases the issue is always going to come down to whether or not the best interests of the child might be affected.

In the most extreme case, in which one parent has been convicted of first degree murder of the other parent, the law specifically prohibits visitation with the children until they are of a suitable age to assent.

Similarly, but to a less serious degree, in making custody and visitation determinations the court will consider crimes that would cause one to question the fitness of a parent. These types of crimes would obviously include any violent crime convictions which could call into question whether the children would be in danger around a parent who has shown themselves to resort to violence when faced with conflict. In addition, drug and alcohol abuse offenses would call into question a parent'…

The Questions that Lawyers and Mediators aren't asking but should: Let's talk about Pronouns

I recently had the opportunity to train with two of the most prominent mediators in Massachusetts: John Fiske and Diane Neumann. Each time they run a training, John and Diane share what they think is the most important question for a client to answer to have an effective mediation. John says that he thought the most important question is "What do I want?" But then he will tell you, with a knowing smile, that Diane disagreed with him and she would say that the most important question for a client to answer is "Who am I?"

I agree with Diane. The best lawyers and mediators ask their clients not just about what they want, but also deep questions about the clients' identity, goals, and values in order to help the clients resolve conflict in the most effective way possible. Despite knowing this, we often fail to ask clients the simplest questions when we first meet them or have them fill out an intake. We fail to give them an opportunity to answer the question “Who …